James Conwell Welsh, Hall, Hamilton, Wainwright & Welsh, Philadelphia, Edwin E. Lippincott, II, Kraft, Lippincott & Donaldson, Media, for appellants.
John Rogers Carroll, Richard T. McSorley, Philadelphia, for appellee.
Before Rhodes, P. J., and Hirt, Ross, Gunther, Wright, Woodside and Ervin, JJ.
[ 176 Pa. Super. Page 362]
This habeas corpus proceeding for the custody of Patricia Ann Kuntz, aged two years, was instituted by her paternal grandmother, Mrs. Elizabeth Kovacs, in the Court of Common Pleas of Delaware County. The respondents, Irene and Robert J. Stackhouse, are the maternal aunt and her husband. After hearings, the court below awarded custody to relatrix, and the respondents have appealed to this Court.
The events preceding institution of this proceeding occurred in Michigan. Prior to April 10, 1953 the child's parents, Andrew and Ethel Kuntz, and the child resided with appellee, then a widow (Mrs. Elizabeth Kuntz), on a farm owned by the latter near the summer resort town of Grand Haven, Michigan. On that date, while appellee was away on a weekend visit,
[ 176 Pa. Super. Page 363]
Andrew and Ethel Kuntz were brutally murdered. The child Patricia, then less than eight months old, was taken across the street to the home of the parents-in-law of her paternal uncle, Frank Kuntz, where she remained until after the funeral of her parents. Subsequently she was removed to Frank Kuntz' home. Appellants, who reside in Delaware County, went to Michigan to attend the funeral and immediately thereafter called on Judge Frederick T. Miles of the Probate Court of the district and expressed their desire to bring Patricia to their home in Pennsylvania and rear her as their own. They have three children of their own.
The murder had been a sensational one, and because of its atrocity had attracted front-page headlines, stories and pictures in Michigan newspapers. The Michigan Probate Court, sensing an impending controversy for custody of Patricia, declared her a ward of the court and removed her from the home of Frank Kuntz to a foster home in order to afford the interested parties sufficient time to recuperate from the shock of the terrible tragedy. On July 6, 1953 the Michigan court ordered custody awarded to appellants and they brought her to live with them in their home in Delaware County where she is presently residing. Appellee appealed, and the Circuit Court of Ottawa County, Michigan, on October 21, 1953, vacated the decree on the basis of noncompliance with Michigan procedural law. Institution of the present proceeding in Pennsylvania followed.
The pertinent statute, Act of July 11, 1917, P.L. 817, sec. 1, 12 P.S. § 1874, requires us on appeal to exercise our independent judgment and award custody based on our own examination of the record. Leonard v. Leonard, 173 Pa. Super. 424, 98 A.2d 638; Com. ex rel. Heston v. Heston, 173 Pa. Super. 260, 98 A.2d 477. The paramount consideration in
[ 176 Pa. Super. Page 364]
cases of this nature is at all times the welfare of the child, which includes its physical, intellectual, moral and spiritual well-being, and all other considerations are subordinate. Com. ex rel. Edinger v. Edinger, 374 Pa. 586, 98 A.2d 172; Com. ex rel. Haller v. Hanna, 168 Pa. Super. 217, 77 A.2d 750, affirmed Appeal of Hanna, 367 Pa. 592, 81 A.2d 546. Accordingly we have scrutinized the record to ...